Cancellation of South Kashmir By-Polls Order

Election Commission of India has finally canceled the South Kashmir by-poll. The order issued late in the night on May 1, 2017 gives a detailed account of the decision-making. In public interest Kashmir Life is publishing the order as it offers details the compelling situation in which the decision was taken. Most of these details were not in public domain earlier

ORDER

People lined up for polling in this file pic.

1. A vacancy arose in the House of the People from 3-Anantnag Parliamentary Constituency (PC) of the state of Jammu & Kashmir with effect from 4th July, 2016 due to resignation of the member of the House, Ms. Mehbooba Mufti.

To fill the said vacancy, the Election Commission of India, vide its notification No.

100/ECI/TERR/NOR-I/J&K-HP/2017 (2) dated 17th March, 2017, issued in pursuance of sub section (1) of section 149 of the Representation of People Act, 1951(43 of 1951), called upon the said Parliamentary Constituency in the state of Jammu & Kashmir to elect a member and under section 30 of the Representation of People Act, 1951(43 of 1951), the Commission fixed different dates for various stages of election, as under: –

a) the 24th March 2017 (Friday), as the last date for making nominations;

b) the 27th March 2017 (Monday), as the date for the scrutiny of nominations;

c) the 29th March 2017 (Wednesday), as the last date for the withdrawal of candidatures;

d) the 12th April 2017 (Wednesday), as the date on which a poll shall, if necessary, be taken; and

e) the 16th April 2017 (Sunday), as the date before which the election shall be completed.

3. The Commission made elaborate arrangements for conduct of free and fair poll in the constituency and issued extensive guidelines with regard to maintenance of law & order, monitoring of expenditure of the candidates and political parties, enforcement of Model Code of Conduct (MCC) etc. Immediately on announcement of the bye- election on 09th March, 2017, the enforcement of MCC was commenced by putting in place 20 Flying Squad Teams (FSTs), 28 Static Surveillance Teams (SSTs), 16 Assistant Expenditure observers with surveillance team, 15 Video Surveillance Teams (VSTs) and 20 Nakas and the same have been continuing to operate round the clock. A total number of four General Observers, one Police Observer and one Expenditure Observer have been deployed by the Commission to oversee the conduct of elections as per the procedure laid down.

Scene in Srinagar on polling day

4. The State Administration in its reports dated 16th and 17th March, 2017 informed that certain elements have started anti-election campaign against the upcoming bye-elections, there is increase in terrorist related incidents and threat posters warning people to boycott poll have been found pasted at several places, more so in South Kashmir. The state administration further requested that the situation being so challenging 300 companies (Coys.) of Central Armed Police Forces (CAPFs) would be required for conduct of bye-elections from the two parliamentary constituencies(as a bye- election from 2-Srinagar PC was also simultaneously called). The Commission took up the matter with Ministry of Home Affairs (MHA) and 300 Coys, of CAPF were provided to the State Government.

As per the schedule, poll for bye-election from 2-Srinagar PC was held on 09th April, 2017 but due to mob violence and unruly law and order situation, the poll in some polling stations in 2-Srinagar PC was disrupted. During the poll day, many incidents were reported involving few casualties and many injuries and several JKSRTC vehicles deployed for bye-election were damaged.

To monitor the situation, the Commission held a Video Conference (VC) on 10 April, 2017 with the state’s Chief Secretary (CS), Chief Electoral Officer (CEO), Home Secretary, Director General of Police (DGP), Divisional Commissioner of Kashmir, CAPF Coordinator and other senior officers of the State. During the Video Conference, the State Administration expressed their apprehension of further escalation of violence, more casualties and more incidents of law and order, if the poll for 3-Anantnag PC was conducted on 12th April, 2017 as per schedule. The Commission directed to send a detailed assessment report on law and order situation.

The State Administration in its report dated 10th April, 2017 informed that all the four districts of Anantnag, Pulwama, Kulgam and Shopian, which constitute Anantnag PC, were the worst affected during the last year’s law and order disturbances and many militants, actively operating in the area, may also join the violent stone throwing crowds to further fuel the cycle of violence, death and destruction on the day of poll. In this background, the State Administration requested to defer the election to the 3-Anantnag PCAs also directed during the Video Conference, CEO, J&K convened an emergency meeting of representatives of political parties to obtain their feedback on the above issues and also those who were not able to attend the meeting, were contacted over phone by the CEO to obtain their views. The representatives of political parties expressed diverse views and opinions about holding election to 3-Anantnag PC.

Keeping in view the ground situation prevailing in the valley and having considered the reports of the CS,DGP, Divisional Commissioner of Kashmir and CEO that the law and order situation prevailing in the 3-Anantnag PC is not conducive to the holding of free and fair poll in the constituency on 12th April, 2017 as scheduled, the Commission postponed the poll for 3-Anantnag PC to 25th May,2017 vide its Notification dated 10.04.2017, expecting the law and order situation and the security scenario in the constituency to improve and become conducive to the holding of free and fair election.

A joint delegation of J&K Pradesh Congress Committee and National Conference met the Commission on 18th April, 2017 and expressed concerns over the deteriorating law and order situation in Kashmir valley and the security aspects of the matter including those of the political activists and requested the Commission to take such extra necessary and adequate measures to instil the confidence amongst the voters in order to ensure conduct of bye-election in a free, fair and impartial manner. Sh. Mufti Tassaduq Hussain, candidate of J&K Peoples Democratic Party (PDP) from 3-Anantnag PC, sent a representation on 20th April,2017 stating therein that the 3-Anantnag PC bye-poll might vitiate further the disturbed atmosphere in entire Kashmir valley and requested the Commission for further deferment of poll for 3-Anantnag PC till improvement in the ground situation in Kashmir.

The Commission directed the CS and DGP of the State on 20th April,2017 to submit a joint detailed report to identify and analyse the causes and reasons etc. of poll violence occurred during poll day on 9th April,2017 in 2-Srinagar PC and delineate strategy to conduct free and fair election in 3-Anantnag PC. The CEO, J&K was also asked to furnish his own assessment on the above points and suggest strategy for free and fair elections.

In the meantime, the Chief Secretary to the Govt, of J&K in his report dated 20th April 2017 informed that during the past few days, a number of incidents of burning of schools/Panchayat Ghars which were designated Polling Stations falling under 3-Anantnag PC and attacks on the political personalities have taken place and reports about the militants harassing the Policemen and their families, to generate an environment of insecurity, fear and chaos have been received. The apprehension was also expressed that conduct of election from 3-Anantnag PC on the scheduled date i.e. 25th May,2017 might witness not only large scale violence but can also result in an even lower voter turnout. He concluded that State Govt, is of the considered opinion that the overall security and law and order situation in the Valley particularly in South Kashmir is not conducive for holding the bye-election from 3-Anantnag PC on 25 May,2017 as scheduled and recommended that the election from 3-Anantnag PC be deferred at least up to the end of October, 2017.

The State Administration, in response to the Commission’s direction, in its joint report dated 21st April,2017 submitted that in the wake of violent incidents taken place on 9th April, 2017 during bye-election from 2-Srinagar PC, a large scale security deployment is needed for conduct of bye-election from 3-Anantnag PC. It was also reported that non-postponement of the election from 3-Anantnag PC would severely impair the resumption of anti-militancy operations, to effectively counter the trend of increase in militancy related activities, by the Security Forces/State Police during the coming months to restore secured environment and public order for a free and fair conduct of elections at the appropriate stage beyond October, 2017. The CEO, J&K reported that at-least four sections of CAPF should be stationed at each and every polling location to ensure free and fair election.

Later, a Video Conference was conducted by the Commission on 24th April,2017 with representatives of political parties and candidates to assess the ground situations; also those who could not attend the meeting, were contacted over phone by the CEO to obtain their views. The representatives of political parties and candidates expressed mixed responses towards holding bye-election in May, 2017; however, the majority of them requested for further deferment of election in view of the prevailing law and order situation.

Relatives wailing near the body of Omar Farooq, a 22-year-old youth who was killed in Baroosa village of Ganderbal District on Sunday, April 9 after clashes erupted when poling staff was attacked by locals pelting stones. PHOTO BY BILAL BAHADUR

On the same day another Video Conference was convened by the Commission with the CEO, Police Nodal Officer, IGP, Kashmir, Divisional Commissioner, Kashmir, CRPF Coordinator and the Dy. Commissioners, SSPs of Anantnag, Kulgam, Shopian and Pulwama districts and it was informed that no political activity is taking place since 10th April, 2017. The ADGP/Police Nodal Officer stated that situation in South Kashmir is not good, overall situation is scary and not very conducive at present and candidates, police, civil staff on election duty are vulnerable. The IGP, Kashmir informed that 687 Coys, of CAPFs would be required by the State Govt, to guard all the 1117 polling station locations including the Quick Response Teams (QRTs).

The Commission again directed the CEO and the State Administration on 27th April, 2017 to furnish latest law and order assessment reports and security scenario with regard to Bye-election from 3-Anantnag PC by 28th April,2017.

The CEO J&K in his report dated 27th April, 2017 informed that the main challenges would be security of polling stations, polling parties and EVM; the security, transportation and logistics of the large number of CAPFs coming from outside and arranging requisite transport facilities for polling parties and security personnel. The CEO further informed that post-Srinagar bye-poll, number of law and order incidents has substantially increased and more than 80 cases of stone pelting incidents by protesters have been reported in the valley since 10th April,2017. He further reported that there has been spurt in militancy related incidents also and 12 major incidents have occurred in the last 21 days resulting in loss of life and damage to property in some cases. Even today, a serious incident of ambush by certain elements resulting into casualties in Kulgam district has been reported.

The State Administration in its report dated 28th April,2017 informed that separatists and anti-national elements, in addition to anti-election campaign, have launched extensive campaign on social media for mobilizing the youth and also threatened the general public against participation in polls by way of targeting political workers and families of police officers. Certain elements have also resorted to use of force which has a demoralising effect on the overall environment in the area. In view of the above, the State Govt, has expressed serious apprehension of further disturbances of law and order across the valley and requested that the bye-election to the 3-Anantnag PC be deferred and scheduled after October, 2017.

The MHA in its letter dated 28th April, 2017, on the issue of providing 687 Coys, of CAPFs for conduct of bye-election from 3-Anantnag PC, informed that considering the commitments in other regions of the country and logistics associated with proposed heavy deployment, making available such a large number of CAPFs does not seem feasible or possible in the given time frame. Finally, the MHA in another communication dated 28th April, 2017 informed that 250 Coys, of CAPFs shall be made available to the State Govt, for conduct of bye-election from 3-Anantnag PC in addition to 54 Coys, of CAPFs already retained for pre-poll arrangements.

The State Administration has time and again reiterated its request to further defer the bye-election to 3-Anantnag PC in view of disturbed law and order situation and has also demanded for additional 687 Coys, of CAPF in the event of conduct of poll as scheduled; however, MHA has expressed its inability to meet the requirement in full and has conveyed that only additional 250 Coys, of CAPF can be made available.

The Commission has carefully examined and analysed all aspects of the on-going bye-election from 3-Anantnag Parliamentary Constituency, in the light of the inputs received from the State Administration of Jammu and Kashmir as well as from the Central Government in the Ministry of Home Affairs regarding availability of requisite forces. The reports received from the State Administration of Jammu and Kashmir, including the reports of the Chief Electoral Officer of the State and the Divisional Commissioner, Kashmir, show that there has been no noticeable improvement in the law and order situation in the four districts of Anantnag, Pulwama, Shopian and Kulgam which constitute the 3-Anantnag Parliamentary Constituency, after the 10th April, 2017, when the Commission deferred the date of poll in the constituency from 12th April to 25th May, 2017.

On the contrary, these reports reveal further continuous deterioration in the situation and the incidents of stone pelting, violence and rioting have rather been on the increase including loss of life. The apprehension expressed by the Chief Electoral Officer that there may be reluctance on the part of the polling personnel to go to the polling locations in view of the fear in their minds with regard to their safety and security is also a matter of serious concern.

Further, the assessment of the police authorities of the State is that they may be requiring additional 687 Coys, of CAPFs to provide security cover to the polling stations, polling personnel and polling materials, apart from providing adequate security cover to the electorate of the constituency to instil a sense of sufficient confidence in their minds to come out on the day of poll to go to the polling stations. The MHA has however expressed certain constraints in making required CAPFs available in the given time frame. They, finally have committed only 250 numbers of additional Coys, of CAPFs against the estimated requirement of 687 Coys, communicated by the State Administration. Furthermore, even in the event of deployment of 687 Coys, of CAPFs there is no assurance from the State Administration that the poll scheduled to be taken on 25th May, 2017, would be a peaceful affair now, with only 250 Coys, as committed by the Ministry of Home Affairs, it would be a bigger challenge to conduct smooth and peaceful election.

In view of the prevailing ground situation and non-availability of sufficient security forces, the Commission is of the considered view that peaceful, free and fair poll is not feasible on 25th May, 2017, as scheduled at present, though some political parties have asked for the same.

The Commission has also considered the option of further deferment of the election as requested by some political parties and the state administration. In the context of requests for deferment, the Commission has taken note of the fact that the Holy month of Ramzan is fast approaching which will be celebrated during the months of May and June, 2017. Further, the annual Amarnath Yatra to the Holy Shrine which, quite significantly, falls in the Anantnag District itself is due to take place from the last week of June till the middle of August 2017. The State Administration is wholly engaged in necessary preparations for the celebrations of these two most important festivals for the whole population in the State, apart from the lakhs of pilgrims visiting the Holy Shrine from all parts of the country. Besides, this period also is important tourist season which affects the whole trade, business and commerce activities of the State. Above all, the continuance of the Model Code of Conduct in the 3-Anantnag Parliamentary Constituency covering four important districts of the State during this peak period of festivities and tourism would also adversely affect the daily lives of the people of the area. Therefore, deferring the elections further also does not seem to be a feasible option.

Thus, having regard to the totality of the facts and circumstances enumerated above, and taking note of the fact that no immediate improvement in the law and order situation is in sight, the Commission is of the considered opinion that this is not the opportune time to continue with the exercise of the conduct of bye-election from 3-Anantnag Parliamentary Constituency. In this context, it may be relevant to state that the Hon’ble Supreme Court, while holding in Election Commission Vs. State of Haryana (AIR 1984 SC 1406) that ‘the ultimate decision as to whether it is possible and expedient to hold the elections at any given point of time must rest with the Election Commission’, has further observed in that case that ‘A sense of realism, objectivity and non-alignment must inform the decision of the Commission on such issue’.

Accordingly, the Commission hereby directs, under Article 324 of the Constitution read with sections 149, 30 and 56 of the Representation of the People Act, 1951, and further read with Section 21 of the General Clauses Act, 1897 and all other powers enabling it in this behalf, that the Commission’s Notifications No.lOO/ECI/TERR/NOR-l/J&K-HP/2017(2), dated 17th March, 2017 and 10th April, 2017, calling upon the said 3-Anantnag Parliamentary Constituency to elect a member to the House of the People shall stand rescinded forthwith. Consequently, all actions and steps taken by the Returning Officer of the said 3-Anantnag Parliamentary Constituency, District Election Officer, Anantnag and all other electoral authorities concerned are hereby declared as null and void. 26. The bye-election to fill the above vacancy in the House of the People from 3-Anantnag Parliamentary Constituency will be held by the Commission in due course when the situation becomes conducive to the holding of free, fair and peaceful election.

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